White House Orders Federal Agencies To Require More Open Access To Not Just Research, But Data

from the big-news dept

Just a couple days ago, we were talking about the newly proposed FASTR bill, which would require federal agencies with greater than $100 million in research funds to require the end results of that research to be published in open ways within six months of publication. As we've noted, for years, the NIH (National Institute for Health) has had a plan that says all the research it funds needs to be published via open access after 12 months.

However, before anything happened with FASTR, it appears that the White House has stepped in to more or less push a fairly similar agenda via a White House policy memo. This comes in response to one of those We The People... petitions (which we had suggested you support). Dr. John Holdren, the Director of the White House Office of Science and Technology Policy, explained this rather big change in policy pretty clearly:

I have issued a memorandum today (.pdf) to Federal agencies that directs those with more than $100 million in research and development expenditures to develop plans to make the results of federally-funded research publically available free of charge within 12 months after original publication. As you pointed out, the public access policy adopted by the National Institutes of Health has been a great success. And while this new policy call does not insist that every agency copy the NIH approach exactly, it does ensure that similar policies will appear across government.

The interesting part is that, while this plan has the same 12 month delay as the NIH plan, rather than the 6 months in FASTR, it looks like the White House is really pushing agencies to go further. They're not just asking for the papers to be open access, but the more useful data as well:

In addition to addressing the issue of public access to scientific publications, the memorandum requires that agencies start to address the need to improve upon the management and sharing of scientific data produced with Federal funding. Strengthening these policies will promote entrepreneurship and jobs growth in addition to driving scientific progress. Access to pre-existing data sets can accelerate growth by allowing companies to focus resources and efforts on understanding and fully exploiting discoveries instead of repeating basic, pre-competitive work already documented elsewhere. For example, open weather data underpins the forecasting industry and provides great public benefits, and making human genome sequences publically available has spawned many biomedical innovations—not to mention many companies generating billions of dollars in revenues and the jobs that go with them. Going forward, wider availability of scientific data will create innovative economic markets for services related to data curation, preservation, analysis, and visualization, among others.

That part is big news, though most people will only focus on the open access to publications part. As he states, open access to data really helps power all sorts of interesting companies and research. In the past, publications have often tried to claim copyright over the data produced by experiments as well (even though you technically can't claim copyright over pure data). I've heard of researchers who have had to redo their own experiments because they had signed away the "rights" to their own data from previous experiments. That's not just wasteful, it's insane. Requiring open access to data is a massive step in the right direction. Kudos to the White House for doing this.

Next up: can we get them to realize the same thing should apply to patents on federally funded research as well, and that such things should not be allowed? Or is that just asking too much?

It will likely be too much Mike because of one thing. They still want the techs developed with Federal money to be commercially exploited as much as possible. And the truth of the matter is that patents do enable some otherwise not financially viable techs to be worthwhile.

As much as it pains me to say, in the area of government/university funded inventions they all too often went unused, sitting on shelves after their invention and disclosure (even when not patented) not being of any use to anyone. That was apparently the reason for the Bayh-Dole act that enabled the inventors to keep the rights to themselves rather than assign them to the federal gov.

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And the truth of the matter is that patents do enable some otherwise not financially viable techs to be worthwhile.

How?

Patents protect (in a sense) the time and expense of the original invention. If that time and expense was footed by the public, then there is no reason for them to be patented.

If a tech is not financially viable without a patent even entities who did not have to put in the time and expense, then the tech is not financially viable at all. The patent may be, but only to patent trolls.

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Why the assumption that taking federal funds means all research dollars are paid by the feds? While is some cases this may be correct, this is the exception and not the rule.

This preoccupation with source of funds misses a very important point...legal rights such as patents and copyrights are unrelated to who "fronted" any money. In the first instance, by law, rights go to inventors and authors, and not to their "patron(s)".

It will be interesting to see how all of this plays out. There is one thing that for sure is guaranteed to cause significant headaches to federal agencies, and this is the treatment of "rights" under Title 15, Title 17, Title 35, the FAR, and agency supplements to the FAR, to name but a few of the many, many hurdles (state and federal) that must be overcome to even begin to try and implement such a policy and/or the proposed legislation.

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"How?"

It BETTTER ensures that the people that put their money behind the project (either a company or plain ol' joes like me and you) of making the item and brining it to market will either a. get the entire profits from whatever market there is for the item or b. get royalties from the competition that is also in that market for that item. Of course it is not complete assurance, but it does a better job than nothing.

And of course it only really works for the useful arts, rather than say, a business method cooked up, or software "function" dreamed up.

In any event, that was the theory behind Bayh-Dohl and supposedly it has worked out pretty well, especially in bio where for years federally funded inventions sat on shelves never making it to the marketplace because of the massive costs to a. make the product en masse and b. start up costs of the factory etc. and c. marketing, informing, clinical trials, etc. etc. Now of course many of those kinds of products are brought to market.

I certainly don't think it is a perfect trade off, but it is the trade-off the government currently supports.

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This preoccupation with source of funds misses a very important point...legal rights such as patents and copyrights are unrelated to who "fronted" any money. In the first instance, by law, rights go to inventors and authors, and not to their "patron(s)".

Nonetheless, the courts have recognized "shop rights" of employers to a presumed license to use inventions that their employees were hired to develop. And since in the case of federally funded research the employer is effectively the public taxpayer,...

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"Shop rights", where recognized (this is a matter of state law, not federal), are very limited in scope...typically a non-exclusive, paid-up, non-transferrable, etc. license. Most often they are associated with inventions by employees of the non-R&D type.

When the phrase "shop rights" rolls off the lips of a lawyer, invariably the lawyer represents an employer who gave not a whit of thought about how the rights to the inventions of its employees should be allocated.

Of course, there are many variations under state law concerning employee inventions, almost all of which result from the application of various contract doctrines (IOW, we, the court, will just make up a contractual relationship that the parties were not smart enough to do themselves.). Hence, we have, for example, the "hired to invent" rules, the "not hired to invent" rules, and the "did it on his own without their help" rules.

Mine are just general comments because specific outcomes depend upon the laws of the states in which such inventions arise.

The Obama administration I would characterize as a 'rubber stamping of bureaucracy' kind of thing. Few times have I recognized his own will at work. And in that light I am so shocked to find something so good like this I cant blink my eyes enough or widen them any wider.

I did not hear any talking about increasing the public commons which would increase public awareness but I don't want to nit pick to much.

This seems like a solid step in a good direction but so much depends on the implementation and follow up. If the follow up is the same as his administration's transparency efforts its wasted paper.

Re: Re: How R U Relevent

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This preoccupation with source of funds misses a very important point...legal rights such as patents and copyrights are unrelated to who "fronted" any money.

Perhaps so, I don't know. That's beside my point anyway.

My point is that when research is developed with public money, then that research is given to a private entity who patents it, this represents an outright theft of public money.

Further, in this situation, the entire purpose of patents (to encourage research and the dissemination of knowledge for the benefit of the public) is eliminated in the first place -- that research would have been done regardless of patents. In that case, I think that it should not be permissible to patent this stuff at all. The public benefits because the research was done. There is no further public benefit from having a patent.